Yelp.com, one of the original defendants in the suit, will appeal the ruling and the other defendants, Tai Jing and Jia Ma, will probably appeal as well, according to Paul Clifford, one of their attorneys.
Yvonne Wong, D.D.S., of Foster City, CA, showed she had at least a minimal chance of prevailing, so the case should not be dismissed under California's anti-SLAPP (strategic lawsuit against public participation) law, the judge ruled.
“This is defamation. If people are allowed to do this, you might as well throw away the defamation law.”
— John Ter Beek, lawyer for Yvonne
"Plaintiff Wong has shown a probability of success on the merits by stating and substantiating legally sufficient claims for libel, intentional infliction of emotional distress, and negligent infliction of emotional distress," wrote Judge William Elfving for the California Superior Court in Santa Clara.
Dr. Wong sued the parents of a young patient after the father, Jing, posted a negative review on Yelp.com. Dr. Wong contends that the review defames her by implying that she didn't inform the boy's parents about alternatives to the use of amalgam and nitrous oxide, and didn't spot other cavities needing treatment.
Dr. Wong's lawyer, John Ter Beek, argued in court Tuesday that the review stepped over the line from discussing a topic of public interest to defamation. He called the use of amalgam fillings a "supposed controversy" and noted that even the ADA approves its use.
Jing's lawyer, Mark Goldowitz of the California Anti-SLAPP Project, argued that his client's review is a matter of public interest because his clients did not know other options were available until they went to another dentist.
This case violates free speech, he said. "That you can get sued just for putting up your opinion has a chilling effect," he said.
Ter Beek countered that Dr. Wong did indeed supply Jing's wife with a dental material fact sheet containing information about mercury fillings. "Now they are saying that they were not told," he said. "This is defamation. If people are allowed to do this, you might as well throw away the defamation law."
Judge Elfving agreed that the review was written in an open forum and concerned "an issue of public interest." But he also found enough evidence of libel so that the case should proceed.
"I'm pleased that we prevailed on the motion," Ter Beek told DrBicuspid.com. "I'm hopeful of a settlement in the case."
Another point of contention is just who should bear the responsibility for the review. Dr. Wong has dismissed her own case against Yelp.com, acknowledging a law that exempts Internet forums from liability for what members write. But Yelp.com is still appealing the case.
"The defense is entitled to vindication," said Paul Clifford, Goldowitz's associate. "The idea is to discourage others from filing [similar lawsuits]."
The two sides are also arguing over whether the boy's mother, Ma, had anything to do with writing the review.
The case goes next to the California Court of Appeals, which will start all over again determining whether it should be dismissed under the anti-SLAPP statute.
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